Who owns ‘shared’ enterprise information?

Although there is a significant and appropriate focus on restricting external unauthorised access to enterprise information it is not uncommon for organisations working together on a project to be sharing information. It may be that the project information is in a shared space or that one of the organisations acts as the host for the data. I am very grateful to Dion Lindsay (Real Knowledge Management) for alerting me to a court case that has (at least in my view as a non-lawyer) significant implications for hosted jointly-shared data. This blog post is based on an opinion from Gowling WLG on the case of Trant Engineering Ltd v Mott Macdonald Ltd before the Technology and Construction Court. The full judgement should be published shortly.

According to the summary published by Gowling WLG Trant Engineering (Trant) was engaged by the MOD as contractor for the Mid Atlantic Power Project, a £55 million project in respect of the construction of a power station in the Falkland Islands. Mott MacDonald was appointed to provide design services and was also the BIM coordinator, controlling access to the common data environment (CDE).

When a fee dispute arose, Mott MacDonald suspended its services and blocked Trant’s access codes to the CDE leaving Trant unable to access the design materials. This case focuses on the situation with the use of Building Information Modelling files by the construction industry. These are of such a size that some form of external hosting may be the optimum solution, that is until a contractual issue arises that might prejudice access.

Data rooms have been widely used by law firms when supporting a client in a merger and acquisition situation. The protocols for access to and ownership of the data are usually very tightly worded by the law firm to protect itself as much as those of its client and of other professional advisors who are involved in the matter. The situation with a BIM file is not the same as the data is common to all the contracts, and indeed the core purpose of a BIM environment is to facilitate the sharing of mutually important files.

According to the Gowlings WLG opinion “The TCC concluded that it had a high degree of assurance that Trant was entitled to have access to the design data which had, in fact, already been placed in shared folders. It was particularly relevant that Trant had previously had access to the CDE before Mott MacDonald had suspended performance of its services. The TCC therefore ordered Mott MacDonald to restore access to the relevant design materials, subject to Trant making a payment into court”.

Although this case looks to be specific to BIM in English law precedent is of the greatest importance in a court case. This case could set a potential precedent for future litigation to shared information depending on the view of the judge if it is indeed a valid precedent. Any organisation in a similar position would do well to bring this to the attention of its legal team. The issues are similar to those with cloud services where the implications for the integrity, sharing and deletion of files may not always be in line with the assumptions of the business. The cloud deal may make sense on cost-management basis but care needs to be taken that the legal implications are fully appreciated across the organisation.